Alex de Waal advance against Luis Moreno Ocampo (“Case Closed,” Spring 2009), it helps to know that the authors’ real grievance is that leveling international charges against Sudanese President Omar al-Bashir is a mistake. The authors put forward Moreno Ocampo as the alleged incompetent, but their true disagreement is with a host of actors: the ICC Judges, who issued the warrant naming Bashir; the governments of the U.S., U.K., and France, who have firmly resisted calls to defer Bashir’s prosecution; the UN Security Council, which referred the Darfur case to the ICC back in 2005; and Darfuris themselves, who favor the view that peace in Darfur will not be attained absent justice. I can state that their portrayal of Moreno Ocampo’s ICC tenure rests on a base of misstated facts and material omissions. The authors also fail to disclose the interests and biases of their (unnamed) sources. The authors also fall well short of proving that Moreno Ocampo’s tenure has been incompetent or that he has acted “without borders.” Moreno Ocampo’s decision that his criminal investigators could not safely operate in Darfur was cautious and, in the end, correct. The Sudanese government indeed detained and tortured persons believed to be cooperating with the ICC and recently expelled aid groups based on the same pretext. Most have judged that this Prosecutor’s tenure has been characterized by extreme conservatism in executing the prosecutorial mandate: four investigations opened in the world’s worst conflicts and in each case following either self-referral by an involved State or referral by the Security Council. The Prosecutor’s strict observance of boundaries is what accounts, in no small part, for the Bush administration’s abandonment, over time, of its categorical opposition to support for the court’s work. The issue is not the man or the woman: it’s the mandate and, now, the institution. The view of Flint and de Waal””to propose no solution other than to let even the world’s worst atrocities continue””is becoming obsolete. Discussing policy might be more productive than engaging in character assassination.

6 comments

Christine Chung’s fuming response to Alex de Waal’s and Julie Flint’s carefully researched and rather moderate review of the confused years of Luis Moreno Ocampo’s years as ICC Prosecutor needs some background to be fully understood.
In the Prosecution Division of the ICC OTP (Office of the Prosecutor) Chung played the role of Moreno Ocampo’s special confidante and hit man. It was a well known fact in the OTP that Chung and Moreno Ocampo had a special and personal relationship. She had the right to bypass her own superior in the Prosecution Division, Deputy Prosecutor Fatou Bensouda, and go directly to Moreno Ocampo, very often providing critical information regarding her colleagues or even her supervisor, the Deputy Prosecutor. Indeed, on one occasion, in 2006, Chung despatched a 500 word e-mail to Moreno Ocampo with accusations against Bensouda for being incompetent. The wording in this e-mail (which I have read, courtesy of Moreno Ocampo’s personal assistant Sofia Velasco), was such that in any normal organisation an employee who, while bypassing her own superior had sent a similar letter to a principal, would have been the subject of disciplinary proceedings, or even immediate dismissal. The problem of Chung’s short cut to Moreno Ocampo was widely discussed in the office and one (brave) colleague of Chung in the PD (Prosecution Division) even had the audacity to bring it up in a conference with all OTP managers present.
Chung was also known for aggresively hunting Moreno Ocampo dissenters in the office, often with e-mails that were copied to many staff members. These e-mails routinely were laced with highly abusive personal remarks. The Investigation Divison even had compiled a special file of these abusive e-mails. One staff member in the end found it necessary to invoke the internal rules against “sexual and other forms of harassment” in order to bring a halt to Chung’s abusive campaign.
Chung’s comments to World Affairs should hence not be seen as independent of Moreno Ocampo, but rather as a proxie or client acting on orders from Moreno Ocampo.

Christian Palme
former Public Information Adviser to the ICC prosecutor.

We had hoped for a more substantive reply than that contained in former trial attorney Christine Chungâ€™s letter. Nonetheless, the issues demand a response.

First, what is the insinuation behind the â€œauthorsâ€™ real grievanceâ€? It is no secret that we believe that the leveling of these charges at this time against President Bashir is an error.

We would have much preferred to cite former members of the ICC on the record. It is revealing that his critics prefer to remain anonymous, even in scholarly journals.

Third, while there are many Darfurians who support the ICC, there are many who oppose it, or would prefer a different approach to the question of justice. Many who welcomed the charges against Bashir expected his arrest to follow. They are already asking “Why isnâ€™t he in jail?”

The OTPâ€™s â€œconservatismâ€ in restricting the number of individuals prosecuted should not be confused with conservatism in the charges leveled. The Prosecutor is anything but conservative in his charges of genocide.

It is ridiculous to allege that we propose â€œno solution other than to let even the worldâ€™s worst atrocities continue.â€ We do not oppose ICC justice in Darfur — only for the president, now — and have both been involved in a number of practical initiatives to help resolve problems in Darfur.

In the spirit of continuing the substantive discussion, rather than the character discussion (which is tawdry, no?) I would like to ask you to re-state your objections to the indictment (arrest warrant) against al-Bashir. You say, “We do not oppose ICC justice in Darfur â€” only for the president, now.” It would be nice also to leave aside in this discussion the issue of the genocide charges, since the consequences in terms of legal reasoning and precedent of having al-Bashir be tried for genocide for what happened in Darfur is I think not essential to what, as you have stated many times, are the quite significant enough crimes of war and crimes against humanity.

My understanding at the time (last March) was that you thought it would completely derail the peace process and possibly lead to enormous human suffering if al-Bashir “angrily” retaliated at the affront to his honor (I think that is how you characterized it). It seems neither has happened to the degree predicted. If anything, the peace processes (CPA and Darfur) are on better tracks than they were before the arrest warrant (we shall see tomorrow with Abyei), and even with the charade of expulsion and readmittance and non-readmittance of aid groups, the increase in suffering, while evidently quite real to those who suffer, has neither affected policymakers and media (chastened perhaps by the joint Mamdani-de Waal offensive) nor IDP community organizers (no large movements or protests seem to have emerged).

Since your objections to the arrest warrant were largely consequentialist, and those consequences have not emerged, have you rethought your position? I would be the first to say that the arrest warrant complicates the various processes, but a “non-arrest warrant” situation (help in reserve like a secret hammer?) would also have complicated things. So I am not sure there is much basis to make judgments on the action.

My own position is that the ICC as a quasi-independent judiciary once established has a logic that is certainly quirky, but not self-evidently negative, and hard to say how it could be improved upon given was the ICC actually is (a court established by a treaty, with lots of rules spelled out in the treaty), and the division among African countries (and I’ll stand with Botswana any day on this, rather than Zimbabwe and Libya and all the others!) over ICC suggests that many people value the steps being taken towards an end to impunity, as complements to local/national struggles for establishment of robust, genuine, rule of law/human rights/civil freedoms etc.

I am not sure that there is any basis to have a great objection to the arrest warrant against al-Bashir “now”. Sure one can object, but when objecting one should perhaps be clear that one is objecting because of a “gut” feeling rather than because one’s status as an expert means one has some secret knowledge or insight that others cannot access, and so one’s objection should have more standing than other’s “embrace” of the arrest warrant “now”.

Lastly, I take it that you think the arrest warrants against Ahmed Haroun and Ali Kushayb were good actions (otherwise do you mean something else when you say you “do not oppose ICC justice in Darfur”). When people ask you, “Why aren’t they in jail?” I presume you give the reasonable person’s explanation of the limits of the ICC, the power of the Khartoum regime to protect its own, the low likelihood of outside intervention, and hence the likelihood of delay, perhaps until after 2011… and the same reasoning applies to al-Bashir, no?

A public figure who attempts to make himself bigger than the institution he purportedly serves is fair game for any criticism. Terming it “character assassination” is a slur. I watched the PBS program “The Reckoning” with deepening dismay. The filmmaker’s draw dropped in awe at Luis Moreno-Ocampo the beginning and nary a critical note crept in. The best review was posted on “Wronging Rights” (http://wrongingrights.blogspot.com/2009/07/whos-down-with-otp.html) and concluded with reference to the husband of the co-blogger, “who initially found it ‘quite balanced, in that it wasn’t only good stuff about the court,’ but revised that assessment upon discovering that it was not actually an OTP recruitment video.”

That’s fine, maybe I shouldn’t say “character assassination” if it is really true assessment of his character (which I certainly have no way of assessing). But my question/comment was not about the character of Moreno-Ocampo, but rather about the changing assessment of the arrest warrant. Alex often urges his interlocutors (well, maybe just Reeves) to “change with the times”… so that is what prompted my comment. I’d like to update my own view too, if there is a good reason to!

I am going to defer a proper answer to your question until September. But in the meantime, it is worth noting that there was at least one ‘angry’ response, namely the expulsion of the NGOs. As it happens, the consequences of that were nowhere near as severe as was feared. It is also worth noting that several of the major players–notably the AU and the US–have not supported the ICC indictment, which has of course altered the dynamics.

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